The Algorithmic Age of Antitrust: Rethinking the Consumer Welfare Standard for Big Tech
Are we becoming a nation mined for our data and attention? And what legal limits, if any, constrain the firms that profit from this extraction economy? Today’s dominant technology firms not only collect behavioral and transaction data, but also integrate, analyze, and leverage it as part of their market power. Big Tech refers to the specific firms Alphabet (Google), Meta (Facebook), Apple, Amazon, and Microsoft, as these firms have platforms that depend on massive data collection, extensive market reach, and a large customer base while offering free or low-cost services to consumers. “Big Tech” shapes the information economy in ways that outpace the ability of federal courts and antitrust enforcement agencies to respond. The rapid rise of generative artificial intelligence (“AI”) amplifies these dynamics by creating new forms of market power and anticompetitive risks, particularly price-fixing. This article examines how Big Tech’s use of AI systems interacts with existing antitrust doctrine. By doing so, it argues that the consumer-welfare standard, which has governed U.S. antitrust for nearly half a century, is poorly equipped to evaluate AI-mediated conduct in digital markets.
Read More
Reining in Relief: Trump v. CASA and the Judicial Retreat from Nationwide Injunctions
In the last decade, nationwide injunctions have emerged as essential judicial tools for preventing constitutional violations from taking effect on a national scale. District courts halted challenged executive orders and laws before they could inflict broad harm. But in Trump v. CASA, Inc. (2025), the Supreme Court sharply curtailed that authority, holding that district courts may issue relief only to the specific plaintiffs before them. [1] By restricting nationwide injunctions, the Court in Trump v. CASA effectively limits the judiciary’s capacity to serve as a structural check on executive overreach, reframing the role of district courts from protectors of nationwide constitutional rights to narrowly constrained arbiters of local disputes. This article argues that the shift away from nationwide injunctions threatens both judicial coherence and equal protection under the law. The argument analyzes how the majority’s formalism narrows equitable power and how the decision fragments constitutional enforcement.
Read More
Balancing Free Speech and Market Integrity: The Constitutional Legitimacy of the SEC’s Gag Rule
Financial markets rely heavily on public trust and regulatory credibility. As these markets evolved, enforcement mechanisms once viewed as heavy handed came to be widely recognized as essential to preserving transparency and stability. One such mechanism is the Securities and Exchange Commission’s (SEC) long standing gag rule. The rule bars defendants who choose to settle an enforcement action from later publicly denying the allegations they resolved. The provision has existed since the 1970s and gained renewed constitutional significance in Powell v. Securities and Exchange Commission (2025), where the Ninth Circuit upheld its legality. The court emphasized a foundational principle of constitutional law by noting that, in proper circumstances, constitutional rights may be knowingly and voluntarily waived. This reaffirmed the constitutionality of limited and voluntary speech restrictions within settlement agreements. The ruling preserved the enforcement tool for the SEC and offered a broader point of reference for waiver doctrine across the administrative state.
Read More
Remedial Discretion and Judicial Supremacy
Section 706 of the Administrative Procedure Act (APA) governs judicial review of agency action. Section 706(2)(A) of the APA instructs the reviewing court to “hold unlawful and set aside” agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Agency action is likely arbitrary and capricious, the Supreme Court has held, if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” This analysis, known as the “hard look” doctrine, requires that agency action be “reasonable and reasonably explained.”
Read More
Objections to Objective Evidence: How the Courts Should Scrutinize Officer Motive in Retaliatory Arrest Claims
Until this year, jaywalking was illegal in New York City. Yet, it would be quite a challenge to find a New Yorker who never jaywalked before 2025. While low-level offenses like jaywalking or littering can be cause for arrest, police officers typically exercise personal discretion in deciding whether to pursue such cases. As affirmed by Justice Gorsuch in Nieves v. Bartlett, “no one doubts that officers regularly choose against making arrests, especially for minor crimes, even when they possess probable cause [for arrest].” This subjective arrest standard can allow for the infiltration of personal bias into arrestmaking decisions. In these cases, someone may face arrest not solely because of their illegal conduct, but because of their expression. For example, a police officer who typically does not arrest for jaywalking may be incentivized to arrest a jaywalking civilian wearing a political slogan that the officer disagrees with.
Read More
Public Schools, Private Faiths: The Legal Fiction of Religious Charters
In 2024, the nation’s first publicly funded religious charter school was established. With the Oklahoma Statewide Virtual Charter School Board’s approval of the St. Isidore of Seville Catholic Virtual School, a legal debate emerged over the constitutionality of religious charter schools. This legal debate culminated in Oklahoma Statewide Charter School Board v. Drummond, where the Oklahoma Supreme Court held that authorizing a religious charter violated both the state constitution and the Establishment Clause of the First Amendment. The judgement of the Supreme Court of Oklahoma was affirmed by an equally divided Supreme Court (Justice Amy Coney recused herself from the vote), leaving the constitutional question unresolved nationwide.
Read More
Redefining Defamation: Establishing Proof of Fault for Libel and Slander in AI Hallucinations
When Internet searches return wildly inaccurate or defamatory results generated by artificial intelligence (AI), who should hold the blame for the damage done to the subjects’ reputations? Decisions resulting from recent and ongoing defamation lawsuits concerning AI, such as Battle v. Microsoft Corp. and Walters v. OpenAI, indicate severe oversight regarding the potential severity of damages caused by AI hallucinations to the reputations of both private individuals and public figures. In order to better protect such individuals from future harm and encourage AI developers to resolve such errors in AI-generated content, new standards must be created to establish proof of fault beyond negligence and actual malice. AI models’ lack of legal personhood demands the creation of a hybrid standard of liability, in which developers may be held at fault for the use of unreliable sources in training AI models and the distribution of false information through their products.
Read More
Crossing the Border of Executive Power: What the Battle over Legal Protections and Border Security Reveal about Executive Overreach
During his first candidacy for President of the United States, Donald Trump came into office with a bold promise: to build a wall along the southern border of the United States. His promise was a physical manifestation of an issue central to his campaign, one of increasing border security and crackdowns on immigration into the country. Yet, the fencing, satellite lighting, watchtowers, and other surveillance infrastructure of the border have posed a risk to the surrounding ecosystems and local species. In his second term, Trump has increasingly focused on retribution towards those who have already immigrated to the U.S. As part of his plan for immigration control, Trump has deported over 500,000 immigrants from the United States, housing many of them in immigration detention centers. Often, though, these centers are built in vulnerable ecosystems, which are harmed by the new constructions.
Read More
Testing RICO in a Warming World: Lessons from Municipality of Bayamón v. Exxon Mobil Corporation
When the Racketeer Influenced and Corrupt Organizations Act (RICO) was first signed into law in 1970, its intended use was to prosecute entire organized crime groups engaged in a pattern of criminal behavior. More recently, however, in Municipality of Bayamón v. Exxon Mobil Corporation (2025), a coalition of Puerto Rican municipalities invoked RICO to sue major fossil fuel companies in the U.S. District Court for the District of Puerto Rico for their role in intensifying the damages caused by Hurricanes Irma and Maria in 2017. They alleged that the fossil fuel companies conspired through industry fronts to deceive the public about the dangers of their products and the severity of climate change, thereby exacerbating the hurricanes that devastated the island. Although the court ultimately dismissed the case as time-barred under RICO’s four-year statute of limitations, the ruling still raises important questions about if RICO could ever succeed in a climate context. Absent the procedural dismissal, the facts and governing law suggest the case would likely have failed on the merits, as the risks of climate change, and the defendants’ role in it were already widely known to the public.
Read More
